COURT OKS CUSTOMS DRUG TESTS

NEW ORLEANS -- The U.S. Customs Service can require employees seeking sensitive jobs to take drug tests, a federal appeals court ruled Tuesday.

The opinion issued by the 5th U.S. Circuit Court of Appeals overturned a lower court decision and lifted an injunction that prevented the Customs Service from administering drug tests to job applicants and workers seeking transfers.

The court did not rule on the constitutionality of testing new job applicants for drugs, saying none were party to the suit nor were any represented by the National Treasury Employees Union.

The ruling does not affect President Reagan's still unfulfilled order requiring government agencies to develop their own specifics to expand drug testing of 1.1 million federal employees.

The proposed drug-testing program for the Customs Service was challenged by the National Treasury Employees Union and had been stopped by an injunction issued Nov. 12, 1986, by U.S. District Judge Robert Collins.

The union had attacked the program as unconstitutional under the Fourth Amendment guarantee of privacy and protection against unreasonable search and seizure.

"The drug-testing program is not so unreliable as to violate due process of law," said the majority opinion by Circuit Judges Alvin Rubin and George Edwards, a sitting judge from the 6th U.S. Circuit Court.

Circuit Judge Robert Hill dissented, saying "the program is an ineffective method for achieving the Customs Service's goals, and thus it is an unreasonable invasion of the Customs Service's employees' Fourth Amendment rights."

Robert Tobias, president of the employees' union, said the union would move promptly to seek a stay of the appeals court decision, and if rejected, would move on to the Supreme Court.

The government argued the tests were imperative for Customs agents who carry guns, handle classified information or are engaged in drug interdiction.

The court agreed, saying, "Use of controlled substances by employees of the Customs Service may seriously frustrate the agency's efforts to enforce the drug laws."

In the administration of the test, an observer is supposed to be present in the restroom as the person tested provides a urine sample in a bottle. The person tested also is given a form to list any medications taken or any legitimate reasons for being exposed to illicit drugs in the previous 30 days.

The court noted the testing was limited to employees seeking transfer to sensitive positions. It also noted the test was, to some extent, consensual since it was required only of people who voluntarily sought employment in a covered position, knowing in advance of the urinalysis requirement.